Opinion
20-P-470
04-07-2022
T.E. v. S.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, S.B., appeals from an order of a District Court judge granting a one-year extension of a harassment prevention order sought by the plaintiff, T.E., pursuant to G. L. c. 258E, § 3 (258E order). We affirm.
S.B. also appeals from three Appeals Court single justice orders denying his motions for leave to file a nonconforming brief and to recuse. However, as S.B. has failed to make any argument in his brief concerning those orders, the appeals are waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 194 n.10 (2005).
Background. The facts are taken from the judge's findings and from the evidence adduced at the evidentiary hearing. See A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). In or around 2005, T.E. testified before a grand jury in a Federal criminal case against S.B. S.B. was ultimately convicted and incarcerated for approximately ten years. In apparent retaliation for T.E.’s cooperation with the Federal drug prosecution, S.B. established "whosarat.com," a website dedicated to identifying and posting personal information about "rats," i.e., government informants. Whosarat.com has been in existence for over a decade, and, while S.B. was incarcerated, was "maintained, operated and overseen" by others on his behalf. Whosarat.com states that T.E. was its "inspiration." Over the years, S.B. posted a variety of sensitive information about T.E. on the website, including, among other things, T.E.’s date of birth, Social Security number, and phone number; a map depicting T.E.’s home address; photographs of T.E.’s vehicle and license plate; and documents from T.E.’s sealed criminal record.
On June 28, 2019, T.E. discovered a dead rat next to his vehicle while it was parked in his driveway, which he believed had been left by S.B. On November 7, 2019, while T.E. was leaving his driveway, he noticed a suspicious vehicle parked on the street approximately fifty feet away from his home. After T.E. circled back around to inspect the vehicle more closely, it sped away, and T.E. pursued it until the driver eventually pulled over. At that point, T.E. realized the driver of the suspicious vehicle was S.B., and a verbal altercation ensued between them during which S.B. called T.E. a "rat" and stated that he (S.B.) had "plenty of time." T.E. felt threatened by S.B.’s statements, believing that S.B. was "imply[ing] something," and the incident caused T.E. to experience "ongoing" fear.
On December 19, 2019, T.E. filed a complaint for protection from harassment pursuant to G. L. c. 258E, alleging that he had been harassed by S.B. on various dates in 2009, 2012, 2018, and 2019. T.E. further alleged, in the accompanying affidavit, that:
"[The] defendant has made threats of physical harm and posted my sealed court documents including my identity on website whosarat.com. Defendant was outside of my residence on 11/7/2019 making threats[.] Defendant has been in my personal driveway taking pictures of myself and my vehicles...."
An ex parte 258E order issued on December 19, 2019 (ex parte order). On December 22, 2019, after the ex parte order had been served on S.B., T.E. observed S.B.’s vehicle enter his driveway and reported the incident to the police.
On January 10, 2020, both parties appeared pro se for an evidentiary hearing. Both parties testified, along with two witnesses called by S.B., and evidence of S.B.’s postings on whosarat.com was presented to the judge. At the hearing, T.E. testified that he decided to seek a 258E order once S.B. "escalat[ed]" from posting on whosarat.com to appearing at or near T.E.’s residence. T.E. testified that, as a result of the three incidents in 2019 (specifically, the dead rat incident on June 28, the altercation on November 7, and the driveway incident on December 22), he was currently in fear of imminent serious physical harm from S.B. S.B. claimed that he had no knowledge of the dead rat incident, that T.E. was the aggressor during the November 7 incident, and that he did not pull into T.E.’s driveway on December 22; however, the judge did not find S.B. credible. The judge found that T.E. had suffered from "harassment" for purposes of G. L. c. 258E, § 1, and thus extended the 258E order for one year. See G. L. c. 258E, § 3. The present appeal followed.
S.B.’s friend testified that T.E. bumped S.B.’s chest with his own. The judge did not credit this testimony.
Discussion. "In reviewing a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed acts that constituted one of the enumerated forms of harassment." A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274 (2017). " ‘Harassment’ is defined in G. L. c. 258E, § 1, in several ways," two of which are relevant here, "and a plaintiff who proves any one of the various forms of harassment qualifies for an order prohibiting the harassment." Id. The first relevant definition of harassment is "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1 (i). The second relevant definition of harassment is conduct that "constitutes a violation of [ G. L. c. 265, § 43A ]," the criminal harassment statute. G. L. c. 258E, § 1 (ii) (B ). The criminal harassment statute punishes "[w]hoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." G. L. c. 265, § 43A (a ).
"The [first] definition of ‘[h]arassment’ in c. 258E, § 1, evolved from the criminal harassment statute," G. L. c. 265, § 43A. O'Brien v. Borowski, 461 Mass. 415, 419-420 (2012).
"A conviction under § 43A requires proof that (1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, willfully and maliciously" (quotation and citation omitted). Commonwealth v. Bigelow, 475 Mass. 554, 561 (2016).
"Both civil and criminal harassment require proof of three or more acts of wilful and malicious conduct aimed at a specific person." O'Brien v. Borowski, 461 Mass. 415, 420 (2012). The three acts may be physical conduct or speech; however, the latter is limited to constitutionally unprotected speech (i.e., "fighting words" and "true threats"). Id. at 420-425. The plaintiff bears the burden of proof, and we review the judge's factual findings for clear error. Ilan I. v. Melody M., 96 Mass. App. Ct. 639, 645 n.9 (2019).
To constitute "fighting words," the statement "must be a direct personal insult addressed to a person" that is "inherently likely to provoke violence." O'Brien, 461 Mass. at 423. "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual," i.e., "words that are intended to place the target of the threat in fear [of physical harm or physical damage to property], whether the threat is veiled or explicit" (quotations and citations). Id. at 423-424 & 427.
Here, the judge found that T.E. proved by a preponderance of the evidence that S.B. engaged in conduct constituting criminal harassment under G. L. c. 265, § 43A. The judge found "that the posting of [T.E.’s] personal information on [whosarat.com] was done either by or at the direction of [S.B.], for reasons of revenge if not also of hostility." The judge explained that, although "there was no explicit articulated threat nor an explicit statement of an intention to harm, [she] looked at the context in which the words were posted online and subsequently stated to [T.E.]" The judge found that, "given the history and relationship between the two parties," (1) the characterization of T.E. as a "rat" on the website "would be considered as a direct personal affront ... and would be likely to promote violence," and (2) the postings "caused the plaintiff to feel alarm and distress." The judge went on to state, "despite the postings being a valid basis for the extension of this order[,] that the Court does not have the authority to order that the postings be removed at this time because of the protections afforded under the First Amendment and the Fourteenth Amendment of the United States Constitution."
S.B. argues that the judge's conclusion regarding the constitutionally protected nature of the postings on whosarat.com requires that we vacate the 258E order, because protected speech cannot form the basis for a harassment protection order. While S.B. is correct that constitutionally protected speech cannot constitute a qualifying act of harassment for purposes of c. 258E, see O'Brien, 461 Mass. at 425, our ability to independently assess whether the website postings do, in fact, contain protected speech is hampered by S.B.’s failure to include those postings in the record appendix.
Although it is possible that the website postings did not amount to constitutionally protected speech, see, e.g., A.S.R., 92 Mass. App. Ct. at 279, we are unable to make that determination because of the incomplete record before us.
We need not reach that issue, however, because the judge found three other separate acts, apart from the website postings, that together constituted "harassment" for purposes of c. 258E, § 1 : (1) the June 28 incident involving the dead rat left next to T.E.’s car while it was parked in his driveway; (2) the November 7 verbal altercation after T.E. saw S.B. parked near his home; and (3) the December 22 incident where T.E. saw S.B.’s car enter his driveway after the issuance of the ex parte order. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("if the facts found by the judge support an alternative legal theory, a reviewing court is free to rely on an alternative legal theory"). The judge credited T.E.’s testimony regarding the November 7 incident and found that T.E.’s pursuit of S.B. did not "negate[ ] the fear or apprehension that he had during that confrontation." The judge also considered the statements made by S.B. during that confrontation, which included calling T.E. a "rat" and stating that he had "plenty of time" -- statements that alarmed T.E. because he believed they contained an implied threat. See A.T., 88 Mass. App. Ct. at 537 ("use of ambiguous language does not preclude a statement from being a threat" [citation omitted]; to determine whether statement is "a true threat," we ask "whether this plaintiff actually was afraid and/or intimidated").
The judge also found it "reasonable ... to draw an inference given the history of the parties, the words and actions of [S.B.], and the relationship between the parties, that [S.B.] was involved in the [June 28] incident concerning the dead rat." Based on all the evidence before the judge, including her assessment of each party's credibility, that was a permissible inference for the judge to draw. See Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (evidence may be entirely circumstantial, and inferences fact finder may draw from evidence need only be reasonable and possible not necessary or inescapable); Commonwealth v. Drew, 4 Mass. App. Ct. 30, 32 (1976) ("Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense"). There was substantial evidence showing that S.B. had referred to T.E. as a "rat" for over a decade (including during the November 7 confrontation); S.B. knew where T.E. lived and what car he drove; and S.B. had been in or near T.E.’s driveway on at least two other occasions. Cf. Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting Mass. G. Evid. § 901(b)(1), (4) (2011) (in determining whether there are "confirming circumstances" sufficient to find by preponderance of evidence that defendant sent anonymous message, court may look to "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics" of message); R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019) ("circumstantial proof may be sufficient to prove that someone sent harassing [anonymous] messages" to plaintiff). Accordingly, on this record, the judge did not err in concluding that the defendant was more likely than not "involved in the incident concerning the dead rat." We likewise discern no error in the judge's implicit finding that the dead rat was intended to communicate a threat. See Commonwealth v. Ridge, 37 Mass. App. Ct. 943, 946 (1994) (defendant's statements referring to informant as "a rat" and "a dead man" constituted admissible "evidence of the threats of the defendant against [the informant]"). See also A.S.R., 92 Mass. App. Ct. at 280 (true threat does not require explicit statement of intention to harm victim, as long as circumstances support victim's fearful or apprehensive response).
In addition to the November 7 and December 22 incidents that occurred in or near T.E.’s driveway, T.E. also averred in the affidavit accompanying his complaint that S.B. had been in his driveway taking photographs of T.E. and T.E.’s vehicles. See J.C. v. J.H., 92 Mass. App. Ct. 224, 228 n.7 (2017) ("judge was permitted to credit the plaintiff's affidavit and further corroboration was not required"). There was also evidence that S.B. had posted photographs of T.E.’s vehicle and license plate on whosarat.com.
As for the third qualifying act of harassment, the judge "consider[ed] the [December 22] incident" to be "yet another occasion which support[ed] [T.E.’s] request for the issuance of a harassment prevention order." We are unpersuaded by S.B.’s claim that there was insufficient evidence regarding this incident because T.E. never actually saw the driver of the vehicle that entered his driveway on December 22. T.E. testified that he saw S.B.’s car in his driveway on December 22; the judge was entitled to credit that testimony and to draw all permissible inferences therefrom, including that T.E. was very familiar with the appearance of S.B.’s car as a result of the November 7 incident. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 (2015).
Having identified three separate acts that could constitute harassment for purposes of G. L. c. 258E, § 1, see Commonwealth v. Robinson, 444 Mass. 102, 108-109 (2005), we turn to the remaining issues of S.B.’s intent and the effect of the three acts on T.E. See O'Brien, 461 Mass. at 420. The judge found, based upon the "credible evidence," that S.B. "willfully and maliciously engaged in a pattern of conduct or a series of acts over a period of time, which acts were directed at [T.E.]," were "characterized by revenge, if not also hostility," and "were committed with the intent to cause fear or intimidation." Crediting T.E.’s testimony that S.B.’s actions made him feel threatened and placed him in fear of imminent serious physical harm, the judge found that T.E. "ha[d] in fact suffered fear or intimidation," and "that the multiple acts" of harassment "alarmed [T.E.] and caused him substantial emotional distress." See J.C. v. J.H., 92 Mass. App. Ct. 224, 228 (2017) (fear judged by subjective standard under G. L. c. 258E, § 1 ). These findings are supported by the evidence and satisfy the requirements for civil or criminal harassment. See O'Brien, supra; G. L. c. 258E, § 1 ; G. L. c. 265, § 43A (a ).
In Robinson, supra, there was "sufficient evidence to find three harassing incidents" where the defendant (1) "sat in his car and ‘glared’ at the victim" before "block[ing] the road ..., forcing the [victim's] family to drive its car over a grassy area," (2) confronted the victim at a coffee shop, "moved close to the victim, clenched his fists, and stated that he would ‘wipe the grin’ off the victim's face," and (3) "stopped his car twice near the victim and his son, and ‘stared menacingly’ at them."
"[T]he definitions of civil and criminal harassment differ in three respects. First, there are two layers of intent required to prove civil harassment under c. 258E: the acts of harassment must be wilful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ and they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ " O'Brien, 461 Mass. at 420, quoting G. L. c. 258E, § 1. "Only the first layer of intent is required for criminal harassment under c. 265, § 43A." O'Brien, supra. "Second, the multiple acts of civil harassment must ‘in fact cause fear, intimidation, abuse or damage to property,’ while the multiple acts of criminal harassment must ‘seriously alarm[ ]’ the targeted victim. Third, criminal harassment requires proof that the pattern of harassment ‘would cause a reasonable person to suffer substantial emotional distress,’ but civil harassment has no comparable reasonable person element." Id.
S.B. contends, however, that the judge's findings regarding his intent and T.E.’s fear cannot stand in the absence of evidence of an explicit threat made by S.B. toward T.E. We disagree. S.B.’s willful and malicious intent, and the fear caused by his actions, can be inferred from the totality of the circumstances. See J.C., 92 Mass. App. Ct. at 228-229 (considering entire course of defendant's conduct). See also Commonwealth v. Johnson, 470 Mass. 300, 314 (2014) (requirement of "serious alarm" in criminal harassment statute measured by overall pattern of conduct); O'Brien, 461 Mass. at 426 n.8 ("the fact finder must look to the cumulative pattern of harassment, and need not find that each act in fact caused fear, intimidation, abuse, or damage to property" under civil harassment statute). The postings by S.B. on whosarat.com, regardless of whether they contained protected speech, were clear evidence of S.B.’s hostility toward T.E. and provided necessary context for the judge's determination that S.B.’s actions in 2019 were willful, malicious, and carried out with an intent to frighten, intimidate, or abuse T.E. See Ilan I., 96 Mass. App. Ct. at 646-647 (defendant's offensive use of word "boys" to refer to adult male couple did not rise to level of true threat or fighting words but was evidence of defendant's malice and hostility toward plaintiffs). Of additional relevance to the judge's determination of S.B.’s intent and T.E.’s fear were the facts that (1) the December 22 incident occurred after the issuance of the ex parte order, see id. at 646 (acts were malicious and intentional where defendant "had displayed a pattern of escalating conduct that no amount of entreaties, a no trespass notice, or threat of litigation had quelled"); and (2) all three acts occurred near T.E.’s residence -- two in his driveway, and one approximately fifty feet from his home. See Commonwealth v. Bigelow, 475 Mass. 554, 568 (2016) ("As part of the contextual analysis, an individual's right ‘to be let alone’ in [his] home is relevant"); Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 285–286, 294 (2006) (where defendant mailed several letters to victim's home that, despite containing no explicit threats, communicated "obsessive tone and fabricated familiarity with the victim," and where defendant continued to send letters after being served with no trespass order, there was sufficient evidence of defendant's willful and malicious conduct, and victim's substantial emotional distress, to sustain criminal harassment conviction). See also Hrycenko v. Commonwealth, 459 Mass. 503, 511 (2011) (letter sent to victim's home "made it clear ... that [defendant] knew where [victim] lived" and showed intent to intimidate victim).
In light of the foregoing, we conclude that there was sufficient evidence for the judge to find, by a preponderance of the evidence, that S.B. willfully and maliciously carried out three acts of harassment with the intent to -- and which in fact did -- cause T.E. to suffer fear of physical harm. See Ilan I., 96 Mass. App. Ct. at 644-645 ; G. L. c. 258E, § 1 (i).
S.B.’s other contentions not addressed herein "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order dated February 18, 2020, extending harassment prevention order affirmed.